Trial Recess: Jim Hurst On What Remote Work Can't Do

By Daniel Siegal
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Law360 (July 17, 2020, 8:45 PM EDT) -- Jim Hurst of Kirkland & Ellis LLP isn't convinced that Zoom and other web platforms are going to be replacing traditional jury trials and other essential in-person work any time soon. In fact, after having COVID-19 in March, he has already hit the road again for a key meeting.

Jim Hurst

The Chicago-based partner has built up an impressive track record in intellectual property trials, especially in his work for pharmaceutical companies. Hurst has won dozens of trials, including securing a defense verdict for a Bristol-Myers Squibb unit in a billion-dollar trade secrets case and a defense verdict for Abbott Laboratories subsidiary Alere in a patent case within a matter of weeks in 2018.

Hurst, who previously chaired Winston & Strawn LLP's 500-lawyer litigation department, joined Kirkland in 2014, where he is a member of its global management committee. He is used to a packed schedule, but has seen the pandemic derail a trio of trials he was set to tackle this spring, delaying them to the end of the year or longer.

In a pair of conversations, one in April and one this month, Hurst discussed how he's using that time and why, despite the ways Zoom is facilitating client meetings and other activities during the pandemic, he still sees face-to-face time as essential for important tasks, like preparing witnesses and building morale on his trial teams.

Hurst also talked about the rush of bankruptcy and contract litigation that the pandemic is spawning and how what he thought was a flu back in March turned out to have been a case of COVID-19.

This interview has been edited for length and clarity.

What are your feelings on trying to resume jury trials at this point?

It depends on the size of the trial. If you have a bunch of local witnesses and local lawyers, to me it presents less risk — if the court takes appropriate precautions. But a lot of my trials are larger trials, witnesses will have to travel, all the lawyers will have to travel. We've got huge trial teams, sometimes witnesses from overseas. And obviously the larger the trial the more issues are presented.

I've often dealt with trials with teams — both lawyers and other personnel — with 12, 15, 20 people. And that just presents huge challenges, because you're also locked in a trial war room for weeks on end.

Is there anything courts and attorneys can do to try and get these cases to trial sooner?

I honestly feel like there's very little that can be done, short of just trying to take every necessary precaution: masks, social distancing. To the extent that some witnesses are less important, then they can testify remotely.

But the reality is, for a jury trial, you have a group of six to 12 people evaluating the credibility of witnesses. And if it's an important witness for you or even for the other side, there's no substitute for being live.

What do you do when you have more time before trial unexpectedly?

The reality is that it's just getting filled up with different matters. You're just shifting your trial prep from one time period to another.

Is there anything you've learned over the last few months of lockdown?

One thing is most, but not all, clients are now having client-outside counsel meetings via platforms like Zoom. And I find those to be quite effective.

It's nice to be able to see people and avoid the need and the time for travel.

But for really important client meetings, I've actually traveled and been there in person. Because it is more effective for the longer, more important meetings.

I've also found that truly there is no substitute when you're preparing a witness for a deposition or getting them ready for trial testimony to being in the room with them. It's, I would say, 25% more effective to be in the room with somebody when you're trying to prepare them.

One skillset that's becoming increasingly important is learning to handle video conferences with judges, which were pretty rare before the pandemic.

This means knowing how to include visuals, including how to look at the camera directly in ways that are effective. And taking cues from judges when they want you to stop talking — which is really easy in a live hearing and surprisingly difficult in a video conference. This is a skillset we're all developing right now.

How are you maintaining team spirit with your colleagues?

It's been hard. Because you're not having that one-on-one interaction that you'd normally have. But the things we've been doing are trying to have regular phone conferences, regular Zoom calls, and just putting a face to the conversation if possible.

But there's really no substitute for the in person one-on-one interaction that is great for morale. And we're doing the best we can given the circumstances. That's something Kirkland as a whole has really emphasized.

You got COVID-19?

I couldn't get testing at the time because I didn't meet the criteria. Testing wasn't available unless you'd traveled internationally or had come into contact with a known COVID-19 victim.

So I recently got the antibody test, and it turns out what I thought was a flu in early March was actually COVID-19.

I haven't let it change my behavior, but there's no doubt it gives me a lot more comfort.

Where are you seeing litigation being impacted by the pandemic?

There's positively new areas of litigation that are increasing, even exploding, as a result of this pandemic. Particularly bankruptcy and insolvency litigation. Businesses are struggling as a result of what's happening with the economy, and bankruptcy and insolvency are a natural result of that. So we're seeing a huge, huge uptick in that kind of litigation.

Another thing we're seeing is that contracts and deals that were executed before the pandemic are giving rise to either litigation or litigation evaluation because the economics of the deal changed completely as a result of the pandemic.

Were there any issues with getting your home office set up?

Kirkland has handled this whole situation in extraordinary ways. Our leadership has spent the time, the money, the effort to make sure we are able to support the entire firm working remotely. And honestly it's been amazingly seamless.

Including sending, without prompting, high-tech telephones to all of our lawyers who didn't already have one and building up the internal infrastructure so we're there to serve our clients as effectively as we were doing before this crisis.

Honestly I've been in awe, it's been pretty amazing.

What are you looking forward to when the pandemic recedes?

The thing I'm looking most forward to is seeing my kids get back to what they love to do. My daughter just graduated high school, in a drive-by graduation. She missed her senior year track season, so I didn't get to see her run track this year or go to the prom. And so I'm looking forward to seeing her get to do very soon what she loves to do.

The same with my son, he loves to play live music in bands and that has been shutdown, and I'm hoping he's able to get back to that soon as well.

--Editing by Emily Kokoll.

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